Counseling & Advocates

Q&A – COUNSELING AND ADVOCATES

QUESTION:
Are there any legal problem for rape crisis victim advocates who are not licensed mental health clinicians when they call their services “counseling”?

ANSWER: First, I need to remind the readers that this answer does not provide legal advice for any specific person or agency, as each will have different concerns and facts related to the question which could change the answer. This FAQ answer is meant only to provide general legal information to help give NCCASA members some background on the question.

In a nutshell, there might be a problem if unlicensed advocates call their services counseling but fail to clearly inform the client that they have no mental health license. Some of the risks are that (1) clients will assume that the advocate or “counselor” providing support services or group facilitation is a licensed counselor if they’re not told otherwise; (2) it can be a crime to misrepresent oneself as a licensed clinician; and (3) the advocate may be subject to some tough cross-examination when she calls herself a “counselor” or her services “counseling” in court, particularly by attorneys who do not understand what advocates do or how valuable their “non-counseling” services are (e.g., But you’re not a real counselor are you? Do you have a license? Are you certified?).

In the North Carolina General Statutes (NCGS), the term “counseling” is dealt with carefully, because counseling is frequently provided to people in a vulnerable or sensitive condition. The Licensed Professional Counselors Act in Chapter 90 begins: “It is declared to be the public policy of this State that the activities of persons who render counseling services to the public be regulated to insure the protection of the public health, safety, and welfare” (NCGS 90-329). However, the rest of Chapter 90 and its rules refer only to the “practice of counseling,” which means “holding oneself out to the public as a professional counselor offering counseling services.” The “counselor privilege” of communications (NCGS 8-53.8) also only addresses licensed counselors under Chapter 90 and repeatedly uses the term “professional counseling services” rather than just “counseling.”

So what are “counseling services” or the “practice of counseling” under the law? Well, the law limits it to mental health “treatment”:

“assisting individuals, groups, and families through the counseling relationship by treating mental disorders and other conditions through the use of a combination of clinical mental health and human development principles, methods, diagnostic procedures, treatment plans, and other psychotherapeutic techniques, to develop an understanding of personal problems, to define goals, and to plan action reflecting the client’s interests, abilities, aptitudes, and mental health needs as these are related to personal-social-emotional concerns, education progress and occupations and careers” (NCGS 90-330).

What about the Victim Advocate privilege of communications – doesn’t it use the term counseling?

Yes, the Victim Advocate privilege of communications for rape crisis and domestic violence victim advocates covers a variety of services, including the following: “individual counseling,” “support,” and “crisis intervention” (NCGS 8-53.12(a)(6)). Also, sexual assault and domestic violence victims are defined as persons using crisis center services for “advice, counseling, or other services.” Given that some crisis centers have licensed mental health clinicians on staff, here the term “counseling” probably applies to the licensed staff members, not the unlicensed advocates. The support group work provided by unlicensed advocates would likely fall under “other services.”

Okay, so could an advocate tell the public she provides “counseling” and state that it is only meant loosely or generally? That is, that she does not engage in the “practice of counseling” or provide “professional counseling services” as she is not a licensed clinician?

Maybe that would be enough to safely use the term counseling to describe an unlicensed advocate’s services. However, the risk may not be worth it. The violation for unlawfully holding oneself out as engaging in “the practice of counseling” is a Class 1 misdemeanor (NCGS 90-341). Other mental health professions also have sanctions for misrepresenting that one holds a license, such as social workers (class 2 misdemeanor, NCGS 90B-12), and fee-based pastoral counseling (injunction, NCGS 90-381). Also, the services unlicensed advocates provide are so valuable it would be a shame if they were criticized in court on cross-examination for appearing to overreach their bounds when they never intended to represent themselves as clinicians. Maybe it’s easier to just use a different word? How about victim advocate, or support group facilitator, or support services, or even peer counselor (to contrast with professional counselor)?

I for one, as a lawyer having had the privilege of working side by side with victim advocates for many years do not think it minimizes the tremendous value of an unlicensed advocate’s services to avoid the term counseling. However, I also feel that it is empowering for victims and survivors to be given a clear understanding of the scope of services being provided, including an understanding of whether or not a service provider is governed by a Code of Ethics or Licensing Board in case there are grievances later. Also, for severely traumatized survivors and those with serious mental health treatment needs, it goes beyond empowerment concerns when an agency makes sure that these clients understand whether or not their “counseling services” are being provided by a licensed clinician or a wonderful, but unlicensed victim advocate.

By NCCASA member Jenny Brobst, J.D., Legal Director at the Center for Child and Family Health in Durham, www.ccfhnc.org, jbrobst@nccu.edu, (919) 419-3474 ext. 401.